Paging Mr. Smith! How The Senate May Return To The Old-School Filibuster

By Brian Beutler

December 30, 2010 3:30 am

On January 5, 2011 — the first day of the 112th Congress — Sen. Tom Udall (D-NM) will touch off a long debate, which he hopes will result in a majority-rules vote on a package of meaningful changes to the Senate rules. After a series of private conversations with Democratic members, he and his allies have settled upon a framework including three distinct reforms designed to unclog the Senate and scale back the minority’s power.

The consensus package will aim to put an end to “secret holds” (anonymous filibuster threats) and disallow the minority from blocking debate on an issue altogether. Those two reforms are fairly straightforward. The third is a bit more complex. Udall, along with Sen. Jeff Merkley (D-OR), say there’s broad agreement on the idea to force old-school filibusters. If members want to keep debating a bill, they’ll have to actually talk. No more lazy filibusters.

But how would that actually work? In an interview Wednesday, Udall explained the ins and outs of that particular proposal.“What we seem to have the most consensus on, is what I would call… a talking filibuster,” Udall told me. “Rather than a filibuster which is about obstruction.”

As things currently stand, the onus is on the majority to put together 60 votes to break a filibuster. Until that happens, it’s a “filibuster,” but it’s little more than a series of quorum calls, votes on procedural motions, and floor speeches. The people who oppose the underlying issue don’t have to do much of anything if they don’t want to.

Here’s how they propose to change that. Under this plan, if 41 or more senators voted against the cloture motion to end debate, “then you would go into a period of extended debate, and dilatory motions would not be allowed,” Udall explained.

As long as a member is on hand to keep talking, that period of debate continues. But if they lapse, it’s over — cloture is invoked and, eventually, the issue gets an up-or-down majority vote.

That doesn’t do away with the principle of unlimited debate. If the minority is determined — and what senator doesn’t like to talk — it can wait out the majority and force them to pull the legislation.

“if the majority leader decides that he would like to move to something else, and put off the extended debate, that would be his choice,” Udall said. But as things stand right now, forcing the majority leader’s hand is just too easy for the minority. The goal of this reform is to make it more difficult.

As things stand, Udall said, “the majority leader’s forced into a situation of just leaving the issues… We’re trying to make sure there’s unlimited debate, but that there is debate.”